Case Information
*1
[Cite as
Wright v. Proctor-Donald
,
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JANICE WRIGHT : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2012-CA-00154 BEVERLY PROCTOR-DONALD, :
ESQ. :
: O P I N I O N Defendant-Appellee
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2012CV00695 JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 13, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee JACK COOPER JONATHAN PHILIPP KRISTEN S. MOORE PHILIPP & GREGORY DAY, KETTERER, LTD 5005 Rockside Road 200 Market Avenue North Suite 200
Canton, OH 44702
Independence, OH 44131
*2
[Cite as
Wright v. Proctor-Donald
,
Gwin, P.J.
{¶1} Appellant Janice Wright appeals the July 20, 2012 judgment entry of the Stark County Court of Common Pleas.
Facts & Procedural History {¶2} On Mаy 18, 2009, appellant retained appellee Beverly Proctor-Donald, Esq. as her attorney to handle a dental malpractice claim against Dr. Michael Crites. The one year statute of limitations for dental malpractice expired on May 30, 2009 and appellee failed to file a complaint on appellant’s behalf by this date. Appellee told appellant on October 27, 2009 that the statute of limitations for the dental malрractice claim had elapsed and appellee withdrew her representation of appellant with respect to the claim on November 17, 2009. Appellant filed a pro se complaint against apрellee for legal malpractice on
May 10, 2010. The trial court sua sponte dismissed the complaint “other than on the merits” on May 19, 2010 for the failure to assert a recognizable claim. Appellant obtained counsel and re-filed her legal malpractice complaint against appellee on October 15, 2010. On March 3, 2011, appellant dismissed the legal malpractice action pursuant to Civil Rule 41(A) and indicated she was “reserv[ing] her right to re-file her complaint within one year of today’s date.” Appellant re-filed her legal malpractice claim against appellee on March 1, 2012, alleging appellee negligently failed to bring an action agаinst Dr. Crites before the expiration of the one year statute of limitations for dental malpractice claims. Appellee moved to dismiss the March 1, 2012 complaint pursuant to Civil
Rule 12(B)(6), arguing appellant could not rely on Ohio’s savings statute and therefore *3 the statute of limitations barred appellant’s claim for legal malpractice. The trial court granted appellee’s motion to dismiss on July 20, 2012, finding the complaint to be barred by the statute of limitаtions
{¶5} Appellant filed an appeal of the trial court’s July 20, 2012 judgment entry and raises the following assignment of error on appeal:
{¶6} “I. THE TRIAL COURT ERRED IN DISMISSING MS. WRIGHT’S CLAIMS, BECAUSE (1) SHE DID NOT PREVIOUSLY USE OHIO’S SAVINGS STATUTE AND WAS ENTITLED TO ITS PROTECTION IN THIS CASE, (2) THE TRIAL COURT WAS REQUIRED TO LIBERALLY CONSTRUE THE SAVINGS STATUTE, WHICH IT DID NOT, (3) THE TRIAL COURT WRONGLY INTERPRETED THE LEGISLATIVE INTENT OF THE SAVINGS STATUTE, AND (4) EVEN ASSUMING THE TRIAL COURT’S STATUTORY INTERPRETATION WAS CORRECT, IT SHOULD HAVE BEEN APPLIED PROSPECTIVELY.” The standard of review on a Civil Rule 12(B)(6) motion to dismiss is de
novo. Greely v. Miami Valley Maintenance Contrs., Inc.,
Utilizing the Savings Statute Appellant states she is entitled to use the savings statute when filing her March 1, 2012 сomplaint. Appellant argues the application of the savings statute to her March 1st complaint does not result in her using the savings statute multiple times as the savings statute was not triggered by her second complaint in October of 2010 *4 because that case was filed within the original statute of limitations for the legal malpractice claim. We disagree.
{¶9} The current version of the savings statute, codified in R.C. 2305.19(A) and effective in 2004, provides as follows:
In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff, or if the plaintiff dies and the cause of action survives, the plaintiff’s representative may commence a new action within one year after the date of the reversal of the judgment or the plaintiff’s failure otherwise than upon the merits or within the period of the original appliсable statute of limitations, whichever occurs later. * * * The former version of the statute prior to 2004 differed from the current statute in two important ways. First, it began with the phrase “in an action.” Second, it included the requirement that the “timе limited for the commencement of such action at the date of the reversal or failure has expired * * *.” Thus, prior to 2004, the language of the statute provided the savings statute could only be applied if a claim failed аfter the statute of limitations had expired. Examining the plain language of current R.C. 2305.19, it is apparent the
language limiting the application of the savings statute to situations in which the limitations period had already lapsed at the timе of the first failure is absent and the savings statute instead applies to “any action” that is dismissed otherwise than on the merits. Under the current version of the statute, a claim may be re-filed using the savings statute on the latter of the following timeframes: (1) within one year from the *5 date of reversal or failure other than on the merits or (2) within the period of the original applicable statute of limitations. Appellant cites Tripplett v. Beachwood Village in support of her argument
that the savings statute is not implicated when a second complaint is filed within the
statute of limitations period. 158 Ohio App.3d 465,
held the savings statute could only be used once to re-file a case and could not be used
to keep actions alive indefinitely. Thomas v. Freeman , 79 Ohio St.3d 221, 227, 680
N.E.2d 997 (1997). The rationale behind this limitation on the savings statute is to
obtain finality of decisions and so the purpose of the civil rules to prevent indefinite
filings is not frustrated. Hancock v. Kroger Co. ,
{¶14} Appellant filed her original complaint on May 10, 2010. The trial court dismissed this complaint otherwise than on the merits on May 19, 2010. Based upon the plain language of R.C. 2305.19, this qualifies as “any action” otherwise thаn on the merits and triggered the savings statute, meaning appellant could re-file her claim within the later of one year from the dismissal otherwise than on the merits (May 19, 2011) or the end of the limitations period (November 17, 2010). Appellant did re-file her claim on October 15, 2010. However, she then voluntarily dismissed her claim on March 3, 2011. When appellant filed her complaint on March 1, 2012, she had already used the savings statute for her October 15, 2010 filing. The limitation on using the savings statute only onсe in a case prohibited appellant from using the savings statute to file her March 1st complaint. Accordingly, the trial court properly determined appellant could not utilize the savings statute to re-file her complаint on March 1, 2012.
Liberal Construction & Legislative Intent Appellant next argues the trial court failed to liberally construe R.C. 2305.19 and misinterpreted the legislative intent of amended R.C. 2305.19. We disagree. Generally when construing a statute, “a court’s paramount concern is the
legislative intent.” State ex rel. Herman v. Klopfleisch , 72 Ohio St.3d 581, 584, 651
N.E.2d 995 (1995). In doing so, the court must first look to the plain language of the
statute itself to determine the legislative intent. Burrows v. Indus. Comm. , 78 Ohio St.3d
78, 81,
construed. Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co. ,
Prospective Application
Appellant finally argues that, even assuming the trial court’s interpretation
of R.C. 2305.19 is correct, it should be applied prospectively. The “general rule is that
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an Ohio court decision applies retrospectively unless a party has contract rights or
vested rights under the prior decision.” DiCenzo v. A-Best Products Co., Inc. , 120 Ohio
St.3d 149, 156,
“(1) whether the decision establishes a new principle of law that was not foreshadowed in prior decisions; (2) whether retroactive application of the decision promotes or retards the purpose behind the rule defined in thе decision; and (3) whether retroactive application of the decision causes in inequitable result.”
{¶19} Id. Further, prospective application “is justified only under exceptional circumstances . . .” Id. at 157. In this case, a wеighing of the factors does not support a deviation from
the general rule of retrospective application. The decision does not establish a new principle of law, as the trial court applied the plain language of the statute that has been in place since 2004. The trial court’s decision furthers the policy purpose of preventing indefinite filings and obtaining finality in a civil action. Finally, retrospective application does not cause an inequitable result, as appellant had the opportunity to file her case twice and utilized the savings statute to re-file her case in October of 2010. This case does not constitute an “exceptional circumstance” warranting prospective-only application of the trial court’s interpretation of R.C. 2305.19 and we default to the general rule that the trial court’s interpretation be applied retrospectively. For the foregoing reasons, we find the trial court was correct in
determining the instant matter is barred by the statute of limitations and dismissing the *9 complaint. We further find the trial court’s interpretation of R.C. 2305.19 be applied retrospeсtively. Accordingly, appellant’s assignment of error is overruled. The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. PATRICIA A. DELANEY _________________________________ HON. CRAIG R. BALDWIN WSG:clw 0423
[Cite as
Wright v. Proctor-Donald
,
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JANICE WRIGHT :
:
Plaintiff-Appellant :
:
: -vs- : JUDGMENT ENTRY
:
BEVERLY PROCTOR-DONALD, ESQ. :
:
: Defendant-Appellee : CASE NO. 2012-CA-00154 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. PATRICIA A. DELANEY _________________________________ HON. CRAIG R. BALDWIN